Prison Labor and the Thirteenth Amendment

An issue raised by the Georgia prison strike is whether and how much prisoners should be paid for their labor. Here’s the first bullet point from the strikers’ list of demands (which I reproduced here):

· A LIVING WAGE FOR WORK: In violation of the 13th Amendment to the Constitution prohibiting slavery and involuntary servitude, the DOC demands prisoners work for free.

As this is ostensibly a legal blog, I would be remiss if I didn’t point out that it does not, in fact, violate the Thirteenth Amendment to require prisoners to work for free. (That, of course, is an entirely separate issue from whether prisoners should be paid as a policy matter, or whether particular prisoners may have constitutionally cognizable challenges to particular work assignments — I’m speaking here at a broad level of generality.) And I’d rather risk pedantic than remiss, so here’s the text of the Thirteenth Amendment, passed and ratified in 1865, with the relevant language bolded:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

This is why states that do pay prisoners can legally pay them well under the minimum wage. From the Prison Policy Initiative, here’s a breakdown of prison hourly wages, ranging from $0 in Georgia and Texas, to 13 cents in Nevada prison camps, to $1.15 in some federal prison industries jobs.

Prison officials are permitted to ban petitions, like those asking for improvements in prison conditions, as long as prisoners have other ways to voice their complaints. Duamutef v. O’Keefe, 98 F.3d 22 (2d Cir. 1996). Officials can ban a prisoner from forming an association or union of inmates, because it is reasonable to conclude that such organizing activity would involve threats to prison security. Brooks v. Wainwright, 439 F. Supp. 1335 (M.D. Fl. 1977). In one very important case, the Supreme Court upheld the prison’s ban on union meetings, solicitation of other prisoners to join the union, and bulk mailings from the union to prisoners, as long as there were other ways for prisoners to communicate complaints to prison officials and for the union to communicate with prisoners. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).

Given all of these legal barriers, not to mention the practical barriers of prison life, it’s all the more remarkable that Georgia prisoners were able to organize and carry out a collective protest of any kind, much less one that lasted almost a week (well, depending on who you ask, the prisoners or the guards) and that attracted national media attention. Hopefully, their demands will draw attention to prison conditions not just in Georgia but around the country.

For those interested in the history of the Thirteenth Amendment, I’ve posted some notes and recommended reading after the jump.

The Thirteenth Amendment: A Brief Overview

For a brief overview of the Thirteenth Amendment’s history, language, and meaning, I recommend “A New Birth of Freedom,” ch. 10 of America’s Constitution: A Biography(Random House, 2005), by Yale Law professor Akhil Reed Amar. The language of the amendment was mostly borrowed from the Northwest Ordinance of 1787 and various subsequent statutes regulating slavery in newly acquired territories, but the substance, Amar writes, was totally new:

While the Thirteenth Amendment clearly condemned traditional forms of unfree labor — chattel slavery itself, debt peonage, and so on — the antebellum experience had also dramatized a variety of other, less obviously economic forms of degradation, dehumanization, and unfreedom. While slave men had been worked against their will in the fields, paradigmatic slavery for women and children had taken other forms above and beyond field work — sexual exploitation and child abuse, for example. By banning all forms of “slavery [and] involuntary servitude,” the Thirteenth Amendment cast a wide net not merely over the nation’s economy but also over its social structure and its domestic institutions. …

Despite its seemingly traditional language, the Thirteenth Amendment thus marked a radical break with the antebellum federal Constitution. That prewar document had imposed few limits on what a state could do to its own inhabitants, whereas the Thirteenth pulverized bedrock legal principles and practices in more than one-third of the states and imposed new affirmative federal obligations on every state. The old Constitution had insulated property-holders from uncompensated takings, but the new one ratified and extended the largest redistribution of property in American history. Slaves were worth more than any other capital asset in the nation except land. In 1860, human chattel represented about three times as much wealth as the entire nation’s manufacturing and railroad stock, yet the Thirteenth made no provision for compensation, even of loyal masters in true-blue states. … A structurally proslavery Constitution became, in a flash, stunningly antislavery.

As it has been subsequently interpreted by the courts, the Thirteenth Amendment doesn’t just ban slavery but also various practices that courts have deemed too uncomfortably close to slavery. For instance, the Thirteenth Amendment protects your right to walk away from a labor contract before your work is complete: you may be compelled to pay damages, but you can’t be compelled by a court to actually finish the work. In other words, you can’t voluntarily contract your future self into forced labor. Nevertheless, many Southern states continued to criminalize breach of contract well in the twentieth century, creating a de facto system of involuntary servitude that is well covered in Leon Litwack’s Been in the Storm So Long(1980), and virtual slavery remains the norm in many corners of American agriculture. But that’s just to say that our system of enforcing constitutional guarantees through the legal system often fails; as a theoretical matter the Thirteenth Amendment prohibits these practices.

The only exception, then — the only form of involuntary servitude explicitly allowed by the Thirteenth Amendment — is involuntary servitude as punishment for “crimes.” Of course, states have few restrictions on how they define “crimes.” During Reconstruction and well into the 1940s many Southern states took advantage of this exception to essentially reinstitute slavery in other forms, as covered by Wall Street Journal reporter Douglas Blackmon in his book Slavery by Another Name(which I noted here).

In light of its plain text, the Thirteenth Amendment has generally been interpreted to bar legal challenges to unpaid or minimally paid prison labor. But a 2009 student note in the William & Mary Bill of Rights Journal argued that there is a constitutional case to be made against involuntary labor in private prisons, since private prison companies are motivated by profits rather than rehabilitation (which was, way back in the nineteenth century, the original justification for prison labor, believe it or not).

It should be noted that, although the Georgia prisoners’ courageous protest righteously received media attention on the outside, there are many collective protests that go on inside prison walls without the outside world knowing about it. Protests and collective action against prison conditions, including work conditions and pay, medical care, and lack of adequate food are often challenged collectively by prisoners, at great risk. I can say with certainty that this has been the case in California women’s prisons, even though it normally goes unreported in the media.